1. ' AMU HUSSAIN, C. J.-A public notice was issued and published in various important Newspapers in the country in the last week of November, 1982 inviting comments whether any of the laws published therein from Vols. 11 and 12 of the Pakistan Code was repugnant to the Holy Quran and the Sunnah. No comments were received. We have carefully gone through those statutes. The United Nations (Security Council) Act (XIV of 1948)
2. The Act of 1948 was enforced to enable, effect to be given and measures to be taken under Article 41 of the Charter of the United Nations.
3. ' Islam has laid great emphasis on implementation and fulfilment of covenants and treaties with other nations. Reference in this connection may be made to the following verses of the Holy Quran :- 5 : 1 "0 ye who believe ! Fulfil (all) Covenants."
4. 8 : 55 "They are those with whom Thou didst make a covenant, But they break their covenant Every time and they have not The fear (of Allah)."
5. 9 : 1 "Quittance is this from Allah and His apostle unto the associators with whom ye had covenanted."
6. 9 : 4 "(But the treaties are) not dissolved."
7. ' With those Pagans with whom ye have entered into alliance And who have not subsequently Failed you in aught, Nor aided anyone against you.
8. ' So NM your engagements With them to the end of their term : for Allah Loved the righteous."
9. 9 : 10 "In a Believer they respect not The ties either of kinship Or of covenant ! It is they Who have transgressed all bounds."
10. 9 : 12 "But if they violate their oaths After their covenant, ' And taunt you for your Faith Fight ye the chiefs of Unfaith : For their oaths are nothing to them: Thus they may be restrained."
11. ' Reference may also be made to the following traditions of the Holy Prophet :-
(1) It is related from Safwan bin-e-Solaim that the Holy Prophet said "Behold ! Him who oppresses a covenanted man, or causes some damage to him, or involves him in such hardship as is beyond endurance, or takes something from him without his wilful consent, I shall be his disputant on the Resurrection Day. (See Mishkat.ulMasabih, Vol. II, translated by Al-Haj Maulana Fazalul Karin], p. 404, Hadith No, 140)."
(2) "Solaim-b-A'mer reported that there was a treaty between Muawayiab and the Romans. He used to travel towards tneir lands, and when the covenant was broken, he attacked them. A man came riding on an Arab horse (or a Turkish horse) and said : Allah is greatest : Fidelity and no treachery. He was Amr-b-Abasah, Muawaylah asked him about it. He said : I heard the Messenger of Allah say : whoso has a treaty between him and a people must neither oppose it nor make it tight (ALL :0_,) meaning that he would not act in a manner that the other party may be compelled to break it) till its term expires or you have to act on equal footing in case the covenant is broken by the other party. Muawayiah then returned with the people."
12. (See ibid, Hadith No, 133, p. 397).
(3) Abu Rafae reported : The Quresh sent me to the Apostle of Allah. No sooner did I see the Prophet the truthfulness of Islam gripped my heart. I said : 0 Messenger of Allah ! By Allah, I shall not return to them (the Quresh). He said : Verily t do neither break a treaty, nor do I imprison an Ambassador.
13. So return, if there persists in you what is now in your heart, come back. Then I returned and came to the Prophet later and accepted Islam.
14. (lbid, Hadith No, 134, p. 398).
(4) Amr-b-Shuaib reported from his father who heard from his grand, father that the Messinger of Allah said in his sermon : Fulfit your covenants of the days of ignorance, because it (i,e, Islam) does not add to it but firmness and do not renew a covenant in Islam. (See ibid, Hadith No, 135, p. 398).
15. ' One of the conditions of the treaty of Hudaibiyya was that any person going to the Holy Prophet from among the Meccans would have to be restored to them even if he was a Muslim. Keeping in view the circumstances of the era the condition looked humiliating. But the treaty is hailed by the Quran as open victory for its effects. However, the Holy Prophet exhibited so much meticulousness to the fulfilment of that treaty that when Abu Baseer a Muslim in the custody of the Quresh came to him, the Holy Prophet did not allow him to remain amongst the Muslims and returned him to the two persons who had been sent to search him and bring him back. In the way, Abu Baseer, somehow, killed one of the two persons while the other one escaped. Abu Baseer came back to the Holy Prophet but he admonished him and addressed him as '0, kindler of war' and observed if there had been somebody to take him (to the Quresh) he would have handed him over to him for being taken to the Quresh. Abu Baseer then left Madina. (Sec Mishkat-ul-Masabih Vol. II, p. 401).
16. ' Several principles can be inferred from these verses and the traditions. It is one of the duties of the Muslims that they shall fulfil their covenants and shall never break them. If the covenant be for some period it shall be fulfilled till the period so fixed expires or till the other party breaks it. The sanctity of the covenant is thus guaranteed in Islam.
17. ' Dr. Hamidullah sums up this topic in the Muslim Conduct of State, paras. 14, 59-62 (Para. 14) "Besides the laws and customs of the land, treaties between two or more States create obligations. The distinct kind of addition to the fabric of the law is tolerated, for shorter or longer periods, in the interest of the State. The classical Treaty of Hudaibiyya provides us with a precedent of terms even improper in themselves being capable of acceptance with a broader view of the ultimate good of the community.
18. (Para. 59). Another important source of international law comprises treaties. Sometimes they (treaties) are bilateral and sometimes multilateral, and obviously they bind only the parties thereto. We shall deal with them in detail later, but it may be pointed out here that there are no precedents in Islamic history of all the States of the world adhering to a treaty, and the reason is not far to seek. Communication and economic interdependence, as also restrictions on foreigners, were not so far developed in those days.
19. (Para. 60). In connection with treaties, it must be recognised once for all that there are certain rules in Muslim law which are imperatively compulsory and for ever (c.5-413...9 4.5-ke3). These cannot lose their binding force except when, and so long as, one is in extreme stress and unavoidable necessity (j 1j1). "Except one who is driven by necessity, neither craving nor transgressing, it is no sin for him" is the oft-repeated Quranic provision. And hence the maxim c-2:3 c.o.Roail) (stress renders the forbidden permissible). Again there are rules in Muslim law which are not compulsory, yet their execution is praiseworthy Thirdly, there are those whose performance or omission is left to the discretion of individual persons. (c.L...).
20. (Para. 61). It is regarding only this last category of acts that custom and treaty impositions are upheld and rendered valid by Muslim law. And, as explained above, treaties concluded under stress against the injunctions of Muslim religious law ( 0,4)4 ) are binding only so long as the necessity remains. Rules regarding the repudiation of treaties will be discussed in subsequent chapter.
21. (Para. 62). It is to be noted that treaties are sometimes wholly and deliberately law-making between the parties concerned ; on other occasions they refer incidentally to registration in an international sense."
22. Thus a covenant entered into between nations and nations on the basis of equality must be accorded the sanctity to which covenants are entitled according to the injunctions of the Quran and the Sunnah.
23. ' The basis of the covenants of the United Nations is equality as well as reciprocity. Such covenants are, therefore, entitled to the highest respect and sanctity in Islam. For these reasons the laws containing the covenants of United Nations including the above law cannot be held to be repugnant to Sharjah.
24. ' The United Nations (Privileges and Immunities) Act (XX of 1948)
25. The Act of 1948 is based upon Conventions and the Privileges and Immunities of the United Nations which was adopted by the General Assembly c of the United Nations on the 13th day of February, .964, and has been given force of law in Pakistan. On the grounds given above, this is in th nature of a treaty.
26. ' The Pakistan (Exchange of Prisoners) Ordinance (XII of 1948)
27. This Ordinance is to implement an agreement with India regarding the exchange of certain classes of prisoners between Pakistan and India.
28. ' The United Nations (Declaration of Death of Missing Persons)iht (VII of 1956)
29. The Act of 1956 was enacted to give effect to the United Nations' Convention on the Declaration of Death of Missing Persons whose last residence was in Europe, Asia or Africa and who disappeared in the years 1939-45 under circumstances Affording reasonable grounds to infer that they had died in consequence of events of war or of racial, religious, political or national persecution. The Convention set out in the schedule to the Act was thus given force of law in Pakistan. Jn Article 3, sub-article (iv), it is stated that a Competent tribunal in each Contracting State will issue a declaration of death of a missing person provided inter alia that a period of at least five (5) years has elapsed since the last known date on which the missing person was probably alive, as indicated by the reception of news or the occurrence of any other fact before the tribunal.
30. ' No Shariah objection can be taken to the period of five (5) years.
31. ' Missing period is called Mafqood (..)".a) in Islamic Fiqh. The expression is defined as a person regarding whom it is not known whether he is dead or alive. There is difference of opinion among the jurists when a Mafqood can be presumed and declared to have died. There are several views of Hanafi jurists on this point. According to one view he will be declared dead when he might have reached the age of 90 years. Another view reduces the period to 70 years while a third one further reduces it to 60 years. The recognised rule however, is stated by Ibn-e-Humarn that it is for the Judge to give any direction in regard to death in the circumstances of any particular case. (See Fathul Qadeer, Vol. V, pages 368 to 375).
32. ' According to Imam Malik the wife of a missing person is allowed to observe iddat of death on the expiration of four years from the date of his disappearance and to re-marry which clearly show that the death of the missing person would be presumed after the lapse of four years. (See Raddul Muhtar, Vol. III, page 362).
33. ' The opinion of Imam Ahmad is that when there is strong ground for presumption of the death of the missing person like a man who is missing from the rank of two fighting bodies or from the ship which is wrecked, his property will be div;ded among his heirs after four years from the date of his disappearance, but if there be no such ground for presumption as in the case of a man who has gone on a journey on business and has not been heard of, the probability of missing person's death may be referred to the Judge who may declare his death having regard to the circumstances of each particular case (See Al Mughni by Ibn-eQuddama, Vol. IV, page 321).
34. ' Among the Shiahs the lapse of 10 years gives rise to the presumption of death of a missing person.
35. Imam Shafei recognised a period of seven years for raising such presumption. (See Muhammadan Law, Vol. II, page 88, by Syed Ameer Ali).
36. ' It is clear from these different opinions that the normal period as fixed by Imam Malik and also by Imam Ahmad is 4 years. The period of five (5) years cannot, therefore, be said to be against Shariah. However, this is not very relevant since the law was enacted in 1956 for declaration of death of persons missing since 1939-1945. The law was thus enacted after eleven years of the contingency contemplated in it.
37. ' The Diplomatic Immunities (Commonwealth Countries Representatives) Act (XXIX of 1957)
38. ' The Act of 1957 declared and confers certain immunities upon represent ties in Pakistan of Commonwealth Countries and on certain other persons who are connected as member of staff or member of families of the Representatives.
39. ' There are several traditions in regard to the treatment to be accorded to Representatives of another nation or government.
40. ' A delegation was led by Aamir bin-e-Tufail who on his visit to the Holy Prophet adopted an unreasonable attitude and talked to the Holy Prophet in a harsh tone. While returning the delegation administered a threat that they would attack Madina and annihilate it. Despite such misbehaviour and threat, the Holy Prophet was extremely polite to them and saw them off like other diplomatic representatives with great honour and respect (Zadul Maad by lbn-e-Qayyim, Vol. III, page 29).
41. ' Once Musailama Kazzab sent his representatives to the Holy Prophet, These representatives made painful suggestions which were absolutely contrary to the tenets and injunctions of Islam. The Holy Prophet however saw them off with great honour and only said that if the murder of the representatives was permitted he would have killed them. (Seerat-e-Hisham, Vol. IV, page 273).
42. ' The Christians of Najran sent a delegation to the Holy Prophet which consisted of 60 men. They were put up and accommodated in the Masjid-eNabwi (Mosque) and in spite of the opposition of his Companions the Holy Prophet allowed them to pray in Masjid-e-Nabwi according to their own tenets. They prayed in the mosque in their own way. (Seerat-e-Halbia, Vol. II, page 235).
43. ' A delgation of Banu Thaqif came to Madina from Taaif. The Holy Prophet received them with great honour and arranged tents for their nay in Majid-e-Nabwi (mosque). He ordered Khalid Ibn-e- Waleed to look after their comfort and show hospitality to them as honoured guests. (See, ibid, Vol. 111, pages 243-L44).
44. ' Sometimes the Holy Prophet also gave such representatives financial aid. Once the delegation of Muzailla tribe came to the Holy Prophet. They had no money for meeting the expenses of their return journey. The Holy Prophet ordered Hazrat Umar to provide them all what was needed for this purpose. (Al-Khasaisul Kubra, Vol. II, page 23).
45. ' It is established from these traditions that the Holy Prophet did not allow any representative to be maltreated; rather he showed them greatest honour and respect and granted immunities to them inter alia from imprisonment and death, however, hostile was their behaviour and threatening their language.
46. ' Dr. Hamidullah sums up these immunities in the Muslim Conduct of State, paras. 291-295. The relevant portion is as follows :- "(291) Envoys, alongwith those who are in their company, enjoy full personal immunity, they must never be killed nor be in any way molested or maltreated. Even if the envoy, or any of his company, is a criminal of the State to which he is sent, he may not be treated otherwise than as an envoy .
(292) Envoys are accorded full freedom of prayer and religious rites. . .
(295) The property of the envoys is exempt from important duties in Muslim territory if reciprocated. So, ash-Shaibaniy says, if the f3reign State exempt Muslim envoys from customs duties and other taxes, the envoys of such States will enjoy the same privileges in Muslim territory; otherwise they may, if the Muslim State so desire, be required to pay ordinary dues like foreign visitors.
47. ' Sarakhsi says in Al Mabsut (Vol. 10, page 92) that if somebody claim, to be an envoy and has in his possession the necessary credentials he shall be granted immunity till the completion of his ambassadorial duty and till return. This is based on the rule that envoys were always given protection during the days of ignorance as well as Islam. Without such immunity they cannot satisfactorily perform their functions.
48. ' The grant of immunities to diplomatic representatives is, therefore,'G incumbent in Sharjah.
49. ' The Transfer of Evacuee Deposits Act (XV of 1956)
50. ' This act provides reciprocal transfer from Pakistan to India and from FI India to Pakistan of certain deposits belonging to refugees and matters connected therewith. -4 ' The following laws which are merely regulatory in character are not', repugnant in any way to the Holy Qur'an and Suunah :- The Protection of Ports (Special Measures) Act (XVII of 1948)
51. ' This Act regulates the special measures to ensure the protection of ports.
52. ' The Diplomatic and Consular Officers (Oaths and Fees) Act (XXI of 1948)
53. ' This Act provides for the administration of oaths by diplomatic and. Consular officers of Pakistan exercising functions in foreign countries or by any diplomatic or consular officer of a foreign country authorised in writing' by the Federal Government and for the levy of fee in respect of certain official) duties performed by them.
54. ' The Regulation of Mines and Oil-Fields and Mineral Development (Government Control) Act (XXIV of 1948)
55. ' The Act provides for certain matters connected with the regulation of mines and oil-fields and mineral development under Government control. Section 2 authorises the Government to frame rules providing for all or any of the following maters namely :-
(1) the manner in which, and the authority to whom, application for the grant or renewal of an exploration or prospecting licence, a mining lease or other mining concession shall be made, and the prescribing of the lees to be txtiri on such application;
(2) the conditions in accordance with which the grant or renewal of an exploration or prospecting licence, a mining lease or other mining concession may be made, and the prescribing of forms for the execution or renewal of such licence, lease and concession;
(3) the circumstances under which renewal of a licence, lease or conces sion as aforesaid may be refused or any such licence, lease or concession whether granted or renewed may be revoked;
(4) the determination of the rates at which, and the conditions subject to which, royalties, rents and taxes shall be paid by licensees lessees and grantees of mining concessions;
(5) the refinement of ores and mineral oils;
(6) The control of production, storage and distribution of minerals and mineral oils;
(7) the fixation of the prices at which minerals and mineral oils may be bought or sold; and
(8) any matter ancillary or incidental to the matters set out in the foregoing clauses of this section.
56. It may be clarified that by virtue of Article 172(2) of the Constitution all lands, mineral and other things of value within the continental shelf or underlyiug the ocean within the territorial waters of Pakistan shall vest in the Federal Government. The principle of Khums, which is applicable to private mines in Sharia is therefore not applicable to lands and mines in Pakistan.
57. ' There is no repugnancy in this Statute with the Holy Qur'an or the Sunnab.
58. ' The Development of Industries (Government Contract) Act (XIII of 1949)
59. It empowers the Government to declare that the development under Government control of industries specified in the schedule to the Act is expedient, in the public interest and in pursuance of such declaration authorises the government to regulate the setting up of any new undertaking or the development of any new or existing undertaking.
60. ' The Merchant Shipping (National Colors) Act (V of 1950)
61. This Act provides for national colours for ships registered in, or owned by persons domiciled in, or bodies corporate established in Pakistan.
62. ' The Pakistan Navy (Extension of Service Act (XXIV of 1950)
63. This Act provides for the retention in service of certain persons enrolled for service in the Pakistan Navy.
64. ' The Pakistan Currency Act (XXIX of 1950)
65. It provides for the issue and putting into circulation of Government of Pakistan one-rupee notes.
66. ' The Pakistan (Army and Air Force) Reserves Act (XL VII of 1950)
67. It provides for the constitution and discipline of the Pakistan Army ant Air Force Reserves.
68. ' The Pakistan Territorial Force Act (L of 1950)
69. The Act constitutes a Pakistan Territorial Force. Section 13 provides that Pakistan Territorial Force when doing duty as such officer, shall be subject to Pakistan Army Act, which is under consideration.
70. ' The Karachi Hotels and Lodging-Houses (Control) Act (XLV of 1950)
71. ' The Pakistan Hotels and Restaurants Act (LXXI of 1976)
72. Both these Acts provide for special measures for registration of inter alia hotels, control of rates which are chargeable in places to which the particular T Act ' applies, and for the reservation of accommodation therein. For this purpose they provide for :-
(a) appointments of Controller and Additional Controllers ;
(b) registration of hotels and lodging houses and restaurants ;
(c) their classification ;
(d) determination of fair rates of accommodation ;
(e) the fixation of limits of persons to be accommodated in any room ;
(f) the reservation of accommodation at the instance of the Controller ;
(g) conditions applicable to eviction of existing guests ;
(h) powers of Controller ; and ( j) manner of summary evictions etc. Such legislations are inter alia necessary for the increase in the tourist u trade which may be an important source of foreign exchange earning for the country.
73. ' The Vagrancy (Karachi Division) Act (LXX1V of 1950)
74. ' There was another Vagrancy Act of 1947 for Sind which was known as The Sind Vagrancy Act, 1947.
75. The Sind Act was repealed in 1958 by The West Pakistan Vagrancy Ordinance, 1958 which was extended to Karachi by the West Pakistan (Extension to Karachi) Ordinance VII of 1964. The Ordinance was made applicable to the Province of West Pakistan except the Federal Capital and the Special Area. It was not thus "applicable to Karachi which at that time was the Federal Capital.
76. It was however, extended to Karachi Division too by the West Pakistan Laws (Extension to arch Ordinance VII of 1964 (Item 15 of the Schedule). The prevalent statute now is West Pakistan Vagrancy Ordinance VII of 1958 which has been examined.
77. ' The West Pakistan Vagrancy Ordinance (XX of 1958)
78. ' This Ordinance was promulgated to deal with vagrancy in West Pakistan.
79. ' The word 'vagrant' is defined as meaning a person of any age of either sex who :-
(a) solicits or receives alms in public places ;
(b) exposes or exhibits with the object of obtaining alms any sore, wound, injury, deformity or disease in a public place for the purpose of soliciting or receiving alms ; (c)allows himself to be used as an exhibit for the purpose of soliciting or receiving alms ;
(d) enters on any private premises without the initiation of the occupier for the purpose of soliciting or receiving alms ; but does not include a person who solicits or receives money, food or gifts for a purpose authorised by rules under a prescribed certificate.
80. ' It provides for the setting up of Welfare Homes in the charge of Manager whose duties are specified in section 5. Section 6 authorises voluntary admission of an old, infirm or disabled person or a child who has no source of livelihood, in the welfare homes with the permission of the District Magistrate. Section 9 provides for sentence of vagrancy while section 10 provides for punishment for employing or causing persons to ask for alms.
81. ' The Ordinance provides for the procedure of trial. Section 14 provides that a vagrant shall remain in custody or serve his imprisonment for the above offences in a welfare home. Provisions as also added for his release on probation (section 16) and discharge from welfare homes (section 17).
82. ' The following classes of persons must be kept separately from each other in the welfare home (section 5) : -
(a) children, (b) females, (c) lepers or persons suffering from contagious diseases, (d) lunatics, (e) infirm, old or incapacitated, (f ) able bodied. The Manager shall arrange :-
(a) for the education of the children detained in the welfare home ;
(b) for such instruction' of the vagrants as may by rehabilitate them in useful trades and make them self-supporting.
83. Begging is not approved or encouraged in Islam. There are several! Traditions of the Holy Prophet in which it has been decried or as well as scorned. These traditions are collected in Jami-ul-Usool by lbne Asser,1 Vol. 10, pp. 533 to 541. Some of them are reproduced below :- ' In order to discourage begging the Holy Prophet said : {{ARABIC TEXT}} "Upper hand is better than lower hand."
84. ' It has been related on the authority of Auf Bine-e-Malik that the Prophet used to take promise of fealty (baiat) from us on certain things including this that we will not beg. He said ,r4:4.11 11.14-5 V"
85. (don't beg anything from people).
86. ' In another tradition the Prophet said that it is better for a person to take his rope and go out and fetch wood to sell rather than beg from the people, who may give ,him charity or decline to give. In this manner Allah will establish his respect.
87. ' In yet another tradition the Prophet is said to have observed : He who despite being rich begs will come on the Day of Judgment in such a condition that his face will be full of injuries. Someone enquired "Oh Prophet ! What is the standard of richness." The Prophet said "to own 50 dirhams".
88. ' The Prophet said : "He who begs despite being possessed of means, collects fire for him." The companions enquired "Oh Prophet ! What is being possessed of means." I he Prophet answered "That which is sufficient for his day's food (Lunch and dinner)."
89. ' It has been related on the authority of Anas that a man from Ansar came to the Prophet and begged. The Prophet asked him whether he had something at his home. He answered .Hat he had a sheet of cloth for wearing and covering the place for sleeping and a cup for drinking water. The Prophet ordered him to bring these two things. When he brought them, the Prophet asked " who wants to purchase them." A person said, "I want to purchase them for one dirham." The Prophet then asked : "Is there anyone willing to pay more than one dirham." A person offered to pay two dirhams for them. The Prophet sold them for two dirhams and gave the price to the Ansari and directed him to purchase food for one dirham for his family and an axe with the other dirham.
90. When he brought it (axe) the Prophet fixed the handle in it. He then asked him to go and cut wood with it, and return after a fortnight. He began to cut wood and sell it. He came to the Prophet after expiry of the period fixed by him and informed him that he had ten dirhams with him though he had also purchased some cloth and food for some dirhams. The Prophet said, "It is better for you than if you had begged and you had been shame faced on the Day of Judgment." Begging is only allowed for three persons, firstly one who is in poverty, secondly, one who has borne a great loss and thirdly one who had to pay a high amount in diyat (e.g.-) (Abu Dawood).
91. ' If the begging itself is not approved except in the case of stress and dire necessity, the begging by use of fraudulent means cannot be countenanced . By Islam. The Act thus fulfils the injunctions of the Holy Prophet.
92. ' The Pakistan Citizenship Act (II of 1951)
93. ' This Act makes provision for and regulates citizenship of Pakistan.
94. ' The Karachi Cattles Slaughter Control Act (LXVI of 1950) The West Pakistan Cattle Slaughter (Control) Act (111 of 1963)
95. This Act was repealed by West Pakistan Act III of 1963. We have gone through the West Pakistan Act.
96. It only regulates the slaughter of cattle. The vires of Karachi Cattle Slaughter Control Act, 1950 were challenged in S. P. No, 39 of 1979-Karachi. It was urged that the provisions fixing the minimum age of the cattle for slaughter was against Sharia. It was held that the provision was not against the Holy Quran and Sunnah and was in the public interest.
97. ' The Pakistan Nursing Council Act (LIX of 1952)
98. ' This Act was repealed by Pakistan Nursing Council Act XXV of 1973 which has been examined.
99. ' The Pakistan Nursing Council Act (XXVI of 1973)
100. This Act was examined in substitution of Pakistan Nursing Council Act, 1952 which was repealed by the above Act. It aims at only setting up of Nursing Council in order to establish the uniform standard of training for nurses, midwives and health visitors.
101. ' The Employment (Record of Services) Act (XIX of 1952)
102. This Act makes provisions for the compulsory maintenance of the recorder of service of persons in certain classes of employment in certain areas.
103. ' The Karachi Control of Disorderly Persons Act (XIX of 1952)
104. ' This Act was repealed by the West Pakistan Control of Goondas (Amendment) Ordinance, 1968 (Ordinance XI of 1968) and the West Pakistan Control of Goondas Ordinance 1959, was made applicable to the whole of West Pakistan. Later in 1975, Sind Crime Control Act (Sind Act IV of 1975) repealed the West Pakistan Control of Goondas Ordinance, 1959, in its application to the Province of Sind.
105. ' The Sind Crimes Control Act (IV of 1975)
106. We have examined Sind Act IV of 1975 and we found no provision in it which may be said to be repugnant to the Quran and the Sunnab ' The Civil Defence Act (XXXI of 1952)
107. This Act is for constitution of forces to be called the Pakistan Armed Forces Nursing Service and to provide for its discipline. It makes applicable(; the Pakistan Army Act, 1952. The Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961 to such extent and subject to such adaptation and modification as may be prescribed, to the officers of the respective services in the Pakistan Armed Forces Nursing Service.
108. ' The Pakistan (Control of Entry) Act (LV of 1952)
109. The Act is to make better provision for controlling the entry of Indian itizens into Pakistan.
110. ' The Pakistan Essential Services (Afaintenance) Act, 1952 (Act No, LIB of1952)
111. The Act makes provision for the maintenance of certain essential services i,e, every employment tinier the Federal Government and the employment et class of employment declared by notification by the Government as an employment or class of employment to which this Act applies. Such notification can be made only in respect of employment or class of employment which is essential for securing the defence or the security of Pakistan or any part thereof, or for the maintenance of such supplies or services as relate to any of the matters with respect to which the Central Legislature has power to make laws and are essential to the life of the community, (section 3). The period during which the declaration shall remain in force cannot exceed six months at a time (section 3 (3)).
112. It empowers the Government or the authorised officer to order persons _ engaged in certain employment to remain in specified area or areas (sec.; tion 4). It also provides for regulation of wages and conditions of service, of such employees, ' The Cantonments (Requisitioning of Immovable Property) Ordinance (IV of 1948)
113. It provides on account of emergency for requisitioning of immovable' property within the limits of Cantonments for purposes other than that of F the Cantonment Boards. Its section 4 provides for assessm ent of compensation. According to it the compensation can be fixed by agreement but if no agreement is reached the Federal Government under the rules framed by it may fix a reasonable amount of compensation and such fixation shall be final. The following rules were made by Gazettee Notification No, 671/49, dated 12th August, 1949 :-
(1) The compensation determinable under these Rules shall be compensation by way of rent.
(2) (i) The compensation shall, if possible, be determined by agreement between the owner of the immovable property and the Military Estates Officer.
(ii) Where no such agreement is reached within a reasonable time compensation shall be the rent of the house on the bass of which the annual value of the house is assessed for purposes of taxation in the assessm ent list prepared by the Cantonment Board concerned under section 66 of the Cantonments Act, 1924 (II of 1924).
(3) The owner of the house shall be liable for repairs to the house to keep it in a habitable condition, and in his default the Military Estates Officer may do the repairs and deduct the cost thereof from the rent, provided that such deduction shall not in any one year exceed a sum equivalent to three months rent as determined by these Rules.
(4) The term 'house' in these Rules means a building or a part of building let wholly or partially for residential purposes and includes :-
(i) Any garden, grounds and outhouses appurtenant to such gilding or part of a building, and
(ii) Any furniture supplied by the Landlord for use in such building or part of a building.
114. Rule 2(H) provides for fixation of compensation according to the value of the assessment list of the Cantonment Board. There is logic behind this rule. It often happens that the existing rental value of the property is often more than shown in the assessment register for the purpose of taxation. The rule aims at discouraging the tendency to avoid paying full tax by concealment of rent received for the property. It will be in the interest of the owners themselves to keep the value as high in the register as corresponds with the rate of rent recovered by the owners and to pay tax thereon so that they may get due compensation in case of requisition of their properties.
115. ' The Karachi Electricity Control Act (LVII of 1952)
116. It provides for the continuance of powers to control the production, distribution, use and consumption of electrical energy.
117. ' The Essential Personnel (Registration) Ordinance (X of 1948)
118. The Act is to provide for the compulsory registration of Essential Personnel at Employment Exchanges.
119. ' The Sind Textile Board Ordinance (X of 1949)
120. The Ordinance incorporates the Sind Textile Board and regulates its working.
121. ' The Dangerous Cargoes Act (V of 1953)
122. The Act makes further provision for the safety of ports in respect of the transit, working and storage of dangerous cargoes and matters incidental thereto.
123. ' The Charitable Funds (Regulation of Collections) Act (XXXI of 1953)
124. The Act provides for the regulation, administration and accounting of collections of charitable donations and for the prevention of frauds in that iI respect.
125. ' The Pakistan Commission of Inquiry Act (VI of 1956)
126. This Act provides for the appointment of Commissions of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing 6Uch functions and within such time as may be specified in the notification. It deals with the power and procedure of the Commission.
127. ' The Pakistan International Airlines Corporation Act (XIX of 1956)
128. The Act provides for the establishment of a Corporation to facilitate _ acquisition of the air- transport undertaking of the Orient Airway Limited, "A, and to make further and better provision for the question and development of air-transport services and purposes connected therewith.
129. ' The Pakistan Names and Emblems (Prevention of Unauthorised Use) Act (XXVIII of 1957)
130. The Act provides for the prevention of unauthorised use of the following names and emblems :-
1. The name, title or semblance of Quaid-i-Azam Muhammad All Jinnah and any variation thereof.
2. The Pakistan flag.
3. The official seal, emblem, insignia or coat-of-arms of Government.
4. A seal, emblem or insignia used by any department of Government.
5. The name, emblem or official seal of :- (i)the United Nations Organization.
(ii) the World Health Organization.
(iii) The World Meteorological Organization.
(iv) The International Civil Aviation Organization.
(v) The International Atomic Energy Agency.
131. ' It is valid.
132. ' The Cotton Act (XXXVIII of 1957)
133. This Act provides measures for the promotion of international trade in cotton.
134. ' The Pakistan Junior Cadet Corps Act (XXXVI of 1953)
135. The Act is for constitution and maintenance of a Junior Cadet Corps fort Pakistan and for its administration.
136. ' The Karachi Essential Article (Price Control and Anti-Hoarding) Act (XXXVII of 1953)
137. Islam does not allow price control in normal situation when theIR merchants sell their commodities at normal prices, since its economic policy is not to interfere with the routine functions of the enterprise and business. It is opposed to imposition of control for so long as the routine rule of supply and demand governs the market. In this connection reference may be made to the following Hadith of the Holy Prophet :- "Arias reported that in the time of the Prophet the current prices once rose high. The Companions submitted "0 Prophet of Allah, fix the rates for us." The Prophet replied "Verily Allah is one who controls the price, curtails (supply) or makes ample provision and provides sustenance. Certainly I hope that I shall meet my Allah while there will be nune amongst you who will hold me responsible either for blood or for property. (Mishkat, Vol. II, p. 291).
138. ' In this connection there is another tradition of the Holy Prophet which denotes the circumstances and background of the above request of the Companions for fixation of rates. It is as under :- "The people suffered in famine and said to the Holy Prophet : '0 Prophet fix rate for us." The Prophet replied, "No, Allah will ask me about an act which I impose on you to be done while He has not ordered me to do that. You only pray for the blessing of Allah.' (Kanzul Ummal, Vol. III, Hadith No, 4631).
139. ' From the above (second) Hadith it is quite clear that on account of famine the crop had failed and the article of food were in short supply. If the prices had been controlled whatever supplies were available in or were attracted to the market from other places would have disappeared. Thus the people were likely to be more hard hit and would have been deprived of the most important basic necessities of life i,e, food. This would have brought starvation and more suffering. It also appears that the increase in the rates was due to a natural phenomenon and not due to unscrupulous devices of profit hungry businessmen. Imposition of price control in these circumstances would have been detrimental to the interest of business as well as the consumer.
140. But the case would be different if the causes of increase in the price of commodities are artificial like creation of artificial scarcity, by the practice of hoarding and monopoly. In such circumstances price control would not be against the above Hadith. (Islam-ka-Nazria-e-Milkiat by Dr. Nijatullah Siddiqui, Vol. II, pp. 187-189).
141. ' Reference in this connection may also be made to the following traditions of the Holy Prophet wherein hoarding and monopoly have been strictly prohibited :-
(i) Muamar reported that the Prophet said, "He who hoards or monopolises "thus a sinner." (Mishkat, Vol. II, p. 291).
(ii) Hazrat Umar reported that the Prophet said, "Allah will inflict epidemics and bankruptcy on those who hoard (and keep away from) the Muslims their foodgrain." (Mishkat, Vol. II, p. 292).
142. ' Maaz reported that he heard the Prophet saying ; "Bad is he who hoards. If Allah makes commodities cheap he becomes aggrieved and if be makes them dear, he becames pleased.
143. (Mishkat, Vol. II, p. 292).
144. ' Commenting on the above Ahadith Imam Ibn-e-Taimiyya says, "that the monopolist is a person who purchases the food-grains which the people need and then hoards them so that their prices may rise. Such a person is a source of considerable suffering for the people and as such the Government IS authorised to compel him to sell those commodities on normal prices, specially when they form their necessities. The jurists are united on this point. (Majmuul Fatawa, Vol. 28, pp. 88-89).
145. ' The opinions differ on the various aspects of price control. This difference is summed up by Ibn-e- Qayyim.
146. "The Ulema have differed on two aspects of price control. Firstly the prices may be generally high but despite this the merchant sells his commodities on a still higher price which exceeds the normal prices. According to Imam Malik, he will be restrained from doing so. Secondly he may sell his merchandise on a price lower than the normal price. There are two views among the Malikis on the question whether he should be restrained from selling cheap.
147. ' According to some follower of Imam Shafei and Imam Ahmad like Abu Askari. Qazi Aou Yala, Abu Jafer Sharif, Abu-ul-Khattab, Ibn-iAkeel etc. No such restraint shall be imposed upon him.
148. ' Imam Malik bases his view on a tradition from Saeed bin Musayyab who said : Once Hazrat Umar passed by Hatib bin-e-Baltaa who was selling dry grapes on rates other than the market rates.
149. Hazrat Umar said to him. "Either you sell according to our market rates or you go out from our market." (Muwatta, Imam Malik).
150. ' This view is also shared by Abul Waleed Baji and others who are of the opinion that the trader will be compelled to sell according to uniform market rates in either case whether he increases the price or decreases the same. But will the prices be fixed if the commodities are sold on normal rates? According to the majority including Imam Malik it will not be fixed in such situation. But Abul Waleed Baji favours price control in this situation also. Ashhab relates from Imam Malik that he said : "The Inspector of markets will fix rates for Butchers like that of meat of goat, sheep and on which the butchers shall sell it but if they do not sell on that rate, they should be turned out of the market.
151. Anyhow these rates will be fixed with the consultation of the merchants, consumers and other experts so that the rights of both the parties are safeguarded" (At-Turuqul Hukmiyya by Ibn-e- Qayyim, pp. 254-258).
152. ' The prominent jurist Ibn-e-Nujaim has also allowed price control when merchants sell their commodities in a way which is detrimental to the interest of the needy. Discussing the Sharia principle of removal of public harm he says that when the merchants sell their edibles for unreasonable prices there should price control (to avoid harm to the public) (Al-Ashbah wan Nazair Ibn-e-Nujaim, p. 87).
153. ' Ibn-e-Taimiyya has also favoured price control when the merchants sell their commodities for unreasonable and abnormal prices. He also favoured the view that the authorities concerned should fix the rates with the consultation of the consumers, merchants and other experts by inviting them to a meeting in this respect and by attempting to secure their unanimity on the rates. This safeguards the rights of both the consumers and merchants. (Majmuul Fatawa, Vol. 28, pp. 88-89).
154. ' We are not concerned with the question whether can be controlled to restrain a person from selling his goods at a cheaper rate. May be that it is sometimes necessary to eradicate the possibility of unhealthy competition.
155. ' However, there is almost unanimity on the point that though it is not justifiable to impose such control when the market is regulated by the ethical norms and the routine impact of supply and demand, but it is necessary to 4 fix prices if the increase in prices be due to the effect of hoarding, monopoly, illegal and unethical trade practices. In such cases it is the duty of the Government to control the prices of basic necessities of life.
156. ' The law is not repugnant to Sharia.
157. The Land Control (Karachi Division) Ordinance (XXVI of 1948)
158. This Ordinance was repealed by West Pakistan Ordinance XII of 1964 which shall be examined later.
159. The Pakistan Special Police Establishment Ordinance (VIII of 1948)
160. The Ordinance was repealed by the Federal Investigation Agency Act, 1974 (Act No, VIII of 1975).
161. The Karachi Rent Restriction Act (VIII of 1953)
162. Rent Restriction Act, 1963 was enforced and was made applicable to all areas other than Cantonment areas. Later in the year 1963 the Cantonment Restriction (Second Amendment)
163. Ordinance, 1962 in its application to This Act was repealed by section 3 of the West Pakistan Rent Cantonments in Pakistan.
164. The Act of 1963, therefore, stands impliedly repealed. The following Acts and Ordinances stand repealed :- The Transfer of Property (Pakistan) Ordinance (IV of 1947)
165. The Pakistan National Guards Act (XIII of 1950)
166. The Passport (Offences) Act (LXI of 1952)
167. The Governor-General Pensions Act (IX of 1954)
168. The Registration of Claims (Displaced Persons) Act (III of 1956)
169. The Pakistan Rehabilitation Act (XLI of 1956)
170. The Essential Commodities Act (III of 1957)
171. The Evacuee Property (Multiple Allotments) Act (VII of 1957)
172. The Pakistan (Administration of Evacuee Property) Act (XII of 1957)
173. The Drugs and Medicines (Indemnity) Act (XVII of 1957)
174. The Manoeuvres and Field Fring (Validations) Act (XII of 1953)
175. The following Acts and Ordinances are not within the jurisdiction of thisls Court and have not been examined for this reason :-
(1) The Pakistan Banking (Prevention of Default and Evasion of Liabilities)
176. Ordinance (V of 1947)
(2) The Imports and Exports (Control) Act (XXXIX of 1950)
(3) The International Montary Fund and Bank Act (XLIII of 1950)
(4) The House Building Finance Corporation Act (XVIII of 1952)
(5) The Tariff (Amendment) Act (XXVI of 1956)
177. In re (Aftab Hussain, C J)